12 Pa. Commw. 118 | Pa. Commw. Ct. | 1974
Opinion by
The issue raised in this appeal
The Board found: “Thus we can and do find that Mr. Nissel has a 100% loss of hearing in his right ear; 74%loss of hearing in his left ear; binaural loss of 78% ; and acoustic nerve trauma reducing ability to discrim
The Board arrives at this result by adopting the reasoning of Lowe v. American Radiator & Standard Sanitary Corporation, 178 Pa. Superior Ct. 137, 143, 113 A. 2d 330, 333 (1955): “Where there is substantial doubt concerning the intent of the legislature, it is our duty to adopt a rule of liberal construction as a guide in order to effectuate the remedial purpose of the act.” The Lowe case is inapposite, for there is no doubt in our minds that when the Legislature said “complete loss of hearing in both ears,” it meant something more than “binaural loss of 78%.”
At the hearing before the referee, the following occurred: “Referee Ricchiuti: Do you want to stipulate for the record his wage, what happened, and then leave the legal end of it or the decision up to the Referee? Mr. Madden: You listen to what I say and if anything I say is not right, then you correct it; o.k.? The Claimant : o.k.” This is hardly a statement to make to, or a response to receive from, a claimant who has suffered a complete loss of hearing. Indeed, based on that statement by claimant’s attorney and claimant’s response, as well as a review of the entire record, it might be difficult to sustain an award based on the standard “for all practical intents and purposes.” It is interesting to note that clcdmant’s medical expert, in his response of December 6, 1971, more recent than employer’s medical expert’s report of December 1,1971, relied on by the Board to find 100% loss of hearing in the right ear, and 74% in the left ear, found that claimant-appellant’s
Accordingly, we enter the following
Oeder
Now, February 8, 1974, the order of the Workmen’s Compensation Appeal Board, dated July 12, 1973, in the above matter is reversed, and the claimant’s petition is dismissed.
For reasons that are not clear, the referee included in the award “$60 a week for a period of 10 weeks, constituting the healing period.” Inasmuch as there was affirmative testimony by the claimant that he did not lose any time away from work and that he did not suffer a loss of earnings, such an award is inappropriate and could not stand, even if there had been a complete loss of hearing.
This section was amended by Act No. 61 of 1972, effective May 1, 1972. Inasmuch as the accident here occurred on April 14, 1970, the 1972 amendment is not applicable.